IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

May 13, 2003 Session

STATE OF TENNESSEE v. FRANKIE LEDBETTER

Direct Appeal from the Circuit Court for Marion County

No. 5311 Thomas W. Graham, Judge

No. M2002-02125-CCA-R3-CD - Filed August 7, 2003

The defendant was convicted of incest and rape of a child and sentenced to twenty-three years at

100% for the rape of a child conviction and eight years as a Range II, multiple offender for the incest

conviction, the sentences to be served concurrently. The defendant was also fined $50,000 for the

rape of a child conviction and $10,000 for the incest conviction. On appeal, the defendant presents

the following claims: (1) the evidence was insufficient to support his convictions; (2) the trial court

erred in determining that the six-year-old victim was competent to testify and improperly vouched

for the credibility of the child-victim; (3) the trial court erred in giving the expert witness instruction

to the jury; and (4) the trial court denied the defendant a fair trial by refusing to let him conduct a voir

dire examination of each juror individually and out of the presence of the other jurors. Upon review,

we affirm the judgments of the trial court but remand for entry of corrected judgments to reflect that

the defendant was convicted of Counts 3 and 4, rather than Counts 1 and 2, of the indictment and to

reflect the defendant’s fines which were omitted from the judgments.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed and

Remanded for Entry of Corrected Judgments

ALAN E. GLENN, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and DAVID H.

WELLES, JJ., joined.

Philip A. Condra, District Public Defender (on appeal and at trial); and Jeffery Harmon, Assistant

District Public Defender (at trial), for the appellant, Frankie Ledbetter.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General;

James Michael Taylor, District AttorneyGeneral; and Sherry D. Gouger and Julia N. Oliver, Assistant

District Attorneys General, for the appellee, State of Tennessee. 
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It is the policy of this court to refer to minor victims of sexual abuse by their initials only.

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OPINION

FACTS

On June 13, 2000, the victim, ML,1 stayed with the defendant, who was her father, at her

grandmother’s home, while her mother and grandmother worked. The victim testified that, at some

point during the day, she was watching television when the defendant “took [her] in the dining room

and put a sock in [her] mouth.” The defendant then carried the victim into her mother’s bedroom and

laid her on her back on the floor. Thereafter, the defendant sat on the victim’s stomach, unzipped his

pants, and “stuck his privates in [the victim’s] mouth and peed.” The victim also said that the

defendant told her not to tell anyone what had happened; however, the victim informed her

grandmother of the sexual abuse as soon as she returned home from work. 

The victim’s grandmother, Debra Layne, testified that on June 13, 2000, she and her daughter,

the victim’s mother, left for work at 6:00 a.m., leaving the victim and her sister in the care of the

defendant. Layne’s husband and other children also lived in the home at that time. When Layne

returned home from work at 4:00 p.m., the victim did not greet her at the car, which was unusual.

After learning from the defendant that the victim was at a neighbor’s, Layne summoned the victim

home. The defendant and one of Layne’s sons left to go pick up the victim’s mother from work.

After speaking with the victim, Layne took her and her sister to the police station, where they were

referred to the Department of Human Services (“DHS”). Layne later accompanied the victim, the

victim’s sister, and their mother to T.C. Thompson Children’s Hospital, where the victim was

examined.

The victim’s mother, Holly Sanders, testified as Layne did, that she left the victim in the care

of the defendant, while she and Layne went to work on June 13, 2000. Sanders’ stepfather, three

brothers, and youngest sister were also at the house when she left for work that morning. When she

returned home from work around 6:30 p.m., an officer came to the residence. After speaking with

this officer, Sanders went to the DHS, where she met Layne and the victim. Thereafter, Sanders

drove the victim to T.C. Thompson Children’s Hospital, where she was examined by Kevin Mounce,

a licensed physician’s assistant.

Finally, the State called Kevin Mounce to testify. Mounce stated that he examined the victim

on June 13, 2000, at approximately 11:00 p.m. and found edema (swelling) on her lower lip and

discoloration in the middle of her lower lip resembling early bruising.

After the prosecution put on its proof, the defendant called Colette Young and Taffy Wilson

as witnesses. Young, a forensic interviewer for the Children’s Advocacy Center of Hamilton County,

testified that she interviewed the victim on June 15 and 16, 2000. Wilson, a child protective services

investigator with the Marion County Department of Children’s Services (“DCS”), testified that the
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victim’s grandmother brought the victim to the DCS around 5:30 p.m. on the day of the incident. The

victim’s mother and Officer Gene Hargis later came to the DCS.

Next, the defendant called Detective Gene Hargis of the Marion County Sheriff’s Department

who testified that he was present at the DCS with the victim, Sanders, and Layne. The victim’s

clothing was subsequently collected and sent to the Tennessee Bureau of Investigation Crime

Laboratory.

The defendant then recalled Mrs. Layne who said that, approximately one week after the June

13, 2000, incident, the victim told her that on the date in question she was mad at her father because

he would not let her go swimming.

The defendant testified that he often babysat the victim and her sister while their grandmother

and mother worked, and he was babysitting them on June 13, 2000. Sanders’ stepfather and brother

were at the house that day, as well. He recalled the victim throwing a tantrum that day because he

did not allow her to go swimming. The defendant denied all allegations of sexual abuse and also

denied putting a sock in the victim’s mouth. He further testified that he was not aware that anything

unusual had happened that day until a police officer arrived at the Layne home and asked him to

vacate the premises. The defendant admitted having a prior felony theft conviction.

ANALYSIS

I. Sufficiency of the Evidence

The defendant argues that the evidence was insufficient to support his convictions because

the facts to which the victim testified “lead to the inescapable conclusion the Defendant could not

have inserted his penis into ML’s mouth from the position that she placed him.” Additionally, the

defendant argues that the victim’s testimony was not credible because she could not describe the

defendant’s penis and she “had no reaction to pee going down her throat.” 

In considering this issue, we apply the familiar rule that where sufficiency of the convicting

evidence is challenged, the relevant question of the reviewing court is “whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319,

99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); see also State v. Evans, 838 S.W.2d 185, 190-92

(Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992); Tenn. R. App. P.

13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if the

evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable

doubt.”). All questions involving the credibility of witnesses, the weight and value given to the

evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d 620,

623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge, accredits the

testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State.”
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State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the rationale for this

rule:

This well-settled rule rests on a sound foundation. The trial

judge and the jury see the witnesses face to face, hear their testimony

and observe their demeanor on the stand. Thus the trial judge and jury

are the primary instrumentality of justice to determine the weight and

credibility to be given to the testimony of witnesses. In the trial forum

alone is there human atmosphere and the totality of the evidence

cannot be reproduced with a written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523 (Tenn.

1963)). A jury conviction removes the presumption of innocence with which a defendant is initially

cloaked and replaces it with one of guilt, so that on appeal, a convicted defendant has the burden of

demonstrating that the evidence is insufficient. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.

1982).

The defendant was convicted of rape of a child and incest. Tennessee Code Annotated section

39-13-522(a) defines rape of a child as “the unlawful sexual penetration of a victim by the defendant

or the defendant by a victim, if such victim is less than thirteen (13) years of age.” Incest is defined,

in pertinent part, as:

(a) A person commits incest who engages in sexual penetration

as defined in § 39-13-501, with a person, knowing such person, to be,

without regard to legitimacy:

(1) The person's natural parent, child, grandparent, grandchild,

uncle, aunt, nephew, niece, stepparent, stepchild, adoptive parent,

adoptive child[.]

Tenn. Code Ann. § 39-15-302(a).

On direct examination, the victim testified that the defendant took her into her mother’s

bedroom, laid her on her back on the floor, and sat on her stomach. She said that the defendant “stuck

his privates in [her] mouth and peed,” and then told her not to tell anyone. Kevin Mounce, the

physician’s assistant who later examined the victim, found “[s]ome swelling in her lower lip[] and

. . . noticed in the mid-line or the middle of her lip there was some discoloration, which [he], in

looking at that, felt like it was some early bruising,” although stating he could not determine what had

caused the bruising.

Our supreme court has stated that “‘[n]o jury can be allowed to return a verdict based upon

oral evidence which is flatly opposed to physical facts, the existence of which is incontrovertibly

established,’” State v. Hornsby, 858 S.W.2d 892, 894 (Tenn. 1993) (quoting Wood v. United States,
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342 F.2d 708, 713-14 (8th Cir. 1965)). However, the defendant presented no proof of any physical

facts that would make the victim’s explanation impossible to have occurred. There were no crossexamination questions regarding the position of the defendant and the victim nor was there any

testimony by the defendant’s witnesses, including the defendant himself, that such positioning would

have made the act in question impossible. That the facts which the defendant attempts to utilize in

the present appeal to support his impossibility claim are inadequate to do so is apparent when

compared with testimony establishing such a claim. See Wood, 342 F.2d at 713 (“From the scanty,

indefinite and indecisive proof adduced at appellant’s trial, it is wholly inconceivable, by any process

of logic or reasoning from the facts disclosed in this record, how appellant might, could, or did, board

a moving freight car, traveling ten (10) to fifteen (15) miles per hour, and within a distance of ‘ten

blocks’ i.e. less than one (1) mile, or within at the very most four to six minutes, ‘break the seal’ of

the refrigerator car . . ., make ‘entry’ therein with intent to, and did throw meat therefrom.”);see also

Hornsby, 858 S.W.2d at 896 (“While the two eyewitnesses testified that the pickup truck was

travelling northbound . . . and the Pontiac was travelling eastbound . . ., the physical facts do not

support their testimony. The damage to the Pontiac was limited to the left or driver’s side of the

vehicle. The damage to the pickup was limited to the front of the vehicle. Had the two vehicles been

travelling as indicated by the witnesses, the damage to the Pontiac would have been to the right or

passenger’s side of the vehicle--not the left or driver’s side. The physical facts are consistent with

the [Defendant’s] testimony regarding the direction of the vehicles. Moreover, the investigating

officer . . . reached this conclusion based upon the statements of the witnesses at the scene, the

location of the damage on the respective vehicles, the gouge mark found in the pavement, and other

physical facts.”). In sum, the testimony in the present appeal does not support the defendant’s claim

of impossibility.

Moreover, questions about the victim’s credibility were resolved by the jury. The jury heard

the testimony and observed the demeanor of both the victim and the defendant. The defendant

testified that the incident did not happen; the victim testified that it did. The jury resolved the obvious

conflict in favor of the victim. The fact that the victim did not see the defendant’s penis may go to

her credibility, but it does not make the facts in question impossible nor overcome the fact that the

jury resolved the conflicts in testimony in favor of the victim. Accordingly, we conclude that the

evidence was sufficient to support both convictions.

II. Qualification of the Victim as a Witness

As to ML, who was six years old and in the first grade at the time of trial, the defendant argues

both that the trial court did not follow the required procedures in determining whether she was

competent to testify and, when she then testified, neglected to properly administer the oath, treating

her in such a way as to confer the court’s “stamp of approval” to her testimony. Because of the

relationship of these issues, we will consider them jointly for purposes of our review.

Rule 601 of the Tennessee Rules of Evidence creates a presumption that all witnesses are

competent to testify unless otherwise provided in the rules or by statute. Tenn. R. Evid. 601. The

Advisory Commission Comment explains this presumption:
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Virtually all witnesses may be permitted to testify: children,

mentally incompetent persons, convicted felons. Rules 602 and 603

should be read in connection with this rule, however, because any

witness must swear or affirm to tell the truth and must have personal

knowledge of that truth. The common law rebuttably presumed

children under fourteen incompetent, Ball v. State, 188 Tenn. 255, 219

S.W.2d 166 (1949), but the proposed rule is contra.

. . . .

The amendment removes the earlier language requiring “of

sufficient capacity to understand the obligation of an oath or

affirmation” and establishes a rebuttable presumption of competency.

Tenn. R. Evid. 601, Advisory Commission Cmt. Rule 603 of the Tennessee Rules of Evidence

requires that “[b]efore testifying, every witness shall be required to declare that the witness will testify

truthfully by oath or affirmation, administered in a form calculated to awaken the witness’s

conscience and impress the witness’s mind with the duty to do so.” 

The determination as to whether ML was competent to testify was a discretionary decision of

the trial court, which will not be overturned on appeal unless the court clearly abused its discretion.

State v. Hallock, 875 S.W.2d 285, 293 (Tenn. Crim. App. 1993). The key issue for the trial court was

whether the six-year-old victim had the ability to understand the necessity of telling the truth while

testifying in the proceedings. State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). “[T]here is no

requirement that the witness have sufficient academic learning to define an oath or articulate its

obligations.” State v. Fears, 659 S.W.2d 370, 375 (Tenn. Crim. App. 1983). 

Prior to her testimony, the trial court questioned ML:

THE COURT: Okay. Now, are you [ML]?

[ML]: (Nods head up and down.)

THE COURT: If you’ll come around and sit in that chair right there,

I want to ask you a couple of questions, okay.

[ML], you’re [ML], is that right?

[ML]: (Nods head up and down.)

THE COURT: How old are you?

[ML]: Six.
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THE COURT: [ML], I need to ask you a couple of questions about

your understanding of what the truth is and what a lie is. Do you know

the difference in what the truth is and what a lie is?

[ML]: (Nods head up and down.)

THE COURT: What is the truth?

[ML]: You tell them what they did.

THE COURT: And what would a lie be? Give me an example of what

a lie would be?

[ML]: You’ll get in trouble if you don’t tell them.

THE COURT: Is a lie a bad thing?

[ML]: (Nods head up and down.)

THE COURT: To tell a lie is something that you should not do, is that

right?

[ML]: (Nods head up and down.)

THE COURT: You should tell the truth, is that right? 

[ML]: (Nods head up and down.)

THE COURT: Now, if I ask you to tell me and promise me that you

will tell the truth, will you do that?

[ML]: (Nods head up and down.)

THE COURT: You won’t tell me a lie, will you?

[ML]: (Nods head from left to right.)

THE COURT: Are you in the first grade right now, [ML]?

[ML]: Yeah.

THE COURT: Were you in kindergarten last year?
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[ML]: Yeah.

THE COURT: Where did you go to kindergarten?

[ML]: Swiss Elementary.

. . . .

THE COURT: Where are you in school now? 

[ML]: Still the same school.

THE COURT: Still at Swiss, okay. Do you remember things that

happened last year while you were at elementary school, I mean

kindergarten? 

[ML]: (Nods head up and down.)

. . . .

THE COURT: Are you learning how to read?

[ML]: I know how to read now.

THE COURT: You do, good. . . . Did they teach you to read some

last year in kindergarten?

[ML]: No.

THE COURT: But you do know how to read some now, is that right?

[ML]: (Nods head up and down.)

THE COURT: What can you read?

[ML]: I can read Mac the Cat and Crack Story.

. . . .

THE COURT: Does [sic] people talk in your room sometimes? 

[ML]: Raven comes in and jumps on me, that’s my baby sister.
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THE COURT: Oh, I see, she jumps on you. Well, I was thinking

more about in school, do people talk a lot of times in school and

people has to say be quiet? 

[ML]: Huh-uh.

THE COURT: Do you know how many people are in your class?

[ML]: Thirteen.

THE COURT: Thirteen. Okay. Now, you’re going to be ask[ed]

some questions about some things that happened about a year ago and

do you remember those things? 

[ML]: (Nods head up and down.)

THE COURT: And if I make you promise to me that you’ll tell only

those things that you can remember, will you keep that promise? 

[ML]: (Nods head up and down.)

The defendant presented no proof to rebut the presumption that ML was competent to testify.

Accordingly, our determination as to whether the trial court abused its discretion in concluding that

ML was competent to testify is based upon the questions of the trial court and her responses. We

conclude that this exchange between the trial court and ML shows that she understood the difference

between the truth and a lie, that lying was “bad,” and that she would not lie during her testimony.

Thus, her testimony showed that she understood the need to tell the truth. See Fears, 659 S.W.2d at

375. 

The ability of ML to remember facts and relate them to the jury about the time surrounding

the incident was demonstrated by her responses to the trial court, as well as to counsel during her

testimony. Her responses to the court’s questions as to where she attended school, her grade and

classmates, and her ability to read, showed that she could remember and relate facts. On direct

examination, she responded to the State’s questions:

Q [ML], can you tell us what your whole name is?

A [ML].

Q And [ML], how old are you now?

A Six.
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Q And do you know when your birthday is?

A April the 9th.

Q Okay. And do you go to school anywhere?

A Swiss.

Q Swiss Elementary? 

A Yes.

Q And what grade are you in?

A First grade.

Q First grade. Do you like going to school?

A Yes. 

Q How many people do you have in your class?

A Thirteen.

Q Thirteen people?

A Yes.

Q And what’s your teacher’s name?

A Ms. Higgins.

Q Do you remember what your teacher’s name was last year in

kindergarten?

A No.

Q Okay.

A Her name was Ms. Reid.

Q Ms. Reid. [ML], do you know what your real mama’s name is?
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A Holly.

Q And how about your real daddy?

A Frankie.

. . . .

Q Before you started kindergarten who did you live with?

A My real mama.

Q Okay. That would be Holly?

A Yes.

Q Who else did you live with?

A I lived with Granny.

Q And what is her name?

A Granny Debra [Layne].

Q Okay. Who else lived with you?

A Crystal and Matthew.

Q Crystal and that would [be] Aunt Crystal and Uncle Matthew?

A Yes.

Q Who else?

A Uncle Bo and that’s it.

Q Okay. Do you have a baby sister?

A Yes.

Q And what’s her name?

A Raven.
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Q Did your daddy live with you last year?

A No.

Q Did he come over some?

A Yes.

Q Last year did you[r] mama and your grandma work?

A Yes.

Q Who watched you when they went to work?

A My real daddy. 

The victim was able to recall these facts, despite the fact that she had been living with a foster

family from the time of the incident to the date of the trial. Therefore, it is evident that she had the

ability to remember and relate facts about the time surrounding the incident with little difficulty.

Facts that she could not remember with great detail or that conflicted with the testimony of other

witnesses were matters for the jury to weigh in determining her believability. State v. Carruthers, 35

S.W.3d 516, 558 (Tenn. 2000), cert. denied 533 U.S. 953, 121 S. Ct. 2600, 150 L. Ed. 2d 757 (2001)

(the “appellate court may not reconsider the jury’s credibility assessments”). 

Appellate courts have recognized the trial court’s “unique ability to observe the witness,” as

in United States v. Thai, 29 F.3d 785, 810 (2nd Cir. 1994), where the district court judge had

observed that a robbery witness, who was six and one-half years old at the time of the crime, was “a

very intelligent child, a bright child who understood the process and knew what this was about, so

I find her – to the extent that that is even an issue, I find her competent to testify.” Id. at 809. In the

present appeal, the trial court stated at the motion for new trial as to ML:

I want the record to be clear that the Court thought this was a

particularly believable small child and I understood how the jury could

find the way they did based on the way this child testified. She was

extremely direct. The transcript is not maybe as clear about how she

appeared in court was actually the case and so I think this is a

credibility issue that both the jury and the Court thought that her

testimony on the significant important issue was believable.

We conclude that the trial court did not abuse its discretion in determining that ML was competent

to testify. See State v. Griffis, 964 S.W.2d 577, 591-92 (Tenn. Crim. App. 1997) (child-victim, five

years old at the time of trial, was competent to testify).
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Additionally, the defendant argues that the trial court did not act impartially because, by its

treatment of ML, it vouched for her credibility. This contention is based upon an exchange, which

occurred after the court had concluded that she was competent to testify and as the jury was to return

to the courtroom. Just before the jury returned, defense counsel stated to the trial court:

Judge, I just want to make it clear on the record again of my concern

and the Court’s questioning of [the victim] in front of the jury is that

the Court does not inadvertently leave the impression that it is

suggested that no matter what she says it’s going to be true, that’s what

I’m concerned with.

The jury then returned, and the trial court introduced the victim and questioned her:

THE COURT: All right, this is [ML], who’s seated here in the chair

and obviously she’s six years old and not too tall. I hope everybody –

can everybody see [ML]?

[ML], you and I had a little talk before the jury came in and I

talked to you about telling the truth. Do you remember that?

[ML]: (Nods head up and down.)

THE COURT: Okay. And you promised that you will tell the truth to

the jury and to everybody here, didn’t you?

[ML]: Yes.

THE COURT: Okay. And you also indicated to the Court that you

knew if you would tell a lie that that would be a bad thing, is that

right?

[ML ]: Yes.

THE COURT: Okay, now these lawyers are going to ask a few

questions of you and you just answer from your own memory of events

as best you possibly can, okay.

[ML]: (Nods head up and down.)

ML then proceeded to testify without comment or objection by the defense.

On appeal, the defendant argues that “[t]he Court never asked the question it stated it would

ask so as to require ML ‘to declare [she] will testify truthfully by oath or affirmation, administered
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in a form calculated to awaken the witness’s conscience and impress [her] mind with the duty to do

so,’” quoting from Rule 603, Tennessee Rules of Evidence. Additionally, he argues that after the trial

court had determined that ML should testify, “it was incumbent upon the Court to proceed with the

child as with any other witness: administer an oath and allow counsel to question.” Instead, according

to the defendant’s argument, the trial court gave the jury the message that ML “had told the trial court

a true story and now she was going to tell a true story to the jury.” 

We respectfully disagree with the defendant’s view of the trial court’s responsibilities or

actions. In dealing with a child who is to testify, the trial court may utilize language which is

appropriate to the situation, as explained by Neil P. Cohen et al., Tennessee Law of Evidence, §

6.03[4] (4th ed. 2000):

Because children lack the understanding, vocabulary, and

experience of adults, courts may fashion a child-oriented oath for a

child witness. This oath may deal simply with such matters as the

difference between truth and falsehood, that lying is improper, and that

the child promises to tell the truth.

In the present appeal, the trial court in the presence of the jury reminded ML that she earlier

had promised to be truthful and had said that telling a lie “would be a bad thing,” asking then that she

answer the lawyers’ questions “as best [she] possibly can.” By this language, we believe that the trial

court complied in a reasonable fashion with the requirement of Rule 603 that it impress upon the sixyear-old witness her duty to be truthful. Since the defendant did not advise the court, as ML was

about to testify, that, in the defendant’s view, the court had vouched for her as a witness, no

determination was made as to whether a curative instruction should be given. Accordingly, we

conclude that this objection is waived. See Tenn. R. App. P. 36(a). Even if not waived, however, it

is without merit.

III. Expert Witness Instruction

The defendant contends that the trial court erred in charging the jury with an expert witness

instruction for the testimony of Kevin Mounce, the physician’s assistant who examined the victim,

arguing that this caused the jury to give undue weight to his testimony.

The admission of expert testimony is governed by Tennessee Rules of Evidence 702 and 703.

The qualification of a witness as an expert is left to the sound discretion of the trial court. See

Ballard, 855 S.W.2d at 562; Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn. 1992).

Principles for the trial court to follow in deciding whether to admit scientific or technical evidence

are set out in Rule 702, which states:

Testimony By Experts.— If scientific, technical, or other specialized

knowledge will substantially assist the trier of fact to understand the

evidence or to determine a fact in issue, a witness qualified as an
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expert by knowledge, skill, experience, training, or education may

testify in the form of an opinion or otherwise.

Tenn. R. Evid. 702; see also McDaniel v. CSX Transp., 955 S.W.2d 257, 264 (Tenn. 1997).

Scientific or technical evidence, like all evidence, must first be relevant to a fact at issue in the case.

See Tenn. R. Evid. 401, 402. If relevant, scientific or technical evidence must also meet the

requirements of Rule 702. 

Mounce testified that he had a bachelor’s degree in allied health, including twenty-four

months of medical training. Additionally, he had been employed in the medical field for seventeen

years, thirteen of which was in the area of pediatrics. Although opining that Mounce was more of a

fact witness than an expert witness, the trial court stated that he was “expert enough to know whether

it’s something that was a bruise or not a bruise.” Based on this statement, it is evident that the trial

court concluded that Mounce was going to testify as an expert regarding the victim’s injuries. 

It is evident that Mounce qualified as an expert in terms of his education, training, and

experience with children. As such, his opinion as to what constituted edema and the signs of early

bruising on a child was permissible pursuant to Rule 702. Accordingly, we cannot conclude that the

trial court abused its discretion in determining that the expert jury instruction should be given, as it

is the court’s obligation to properly charge the jury on all the issues of law that were raised by the

evidence at trial. State v. McAfee, 737 S.W.2d 304, 308 (Tenn. Crim. App. 1987). 

IV. Denial of Individual Voir Dire of Prospective Jurors

The defendant asserts that the trial court erred by not allowing individualized voir dire

because of the nature of the charges – incest and child rape. To support his proposition, the defendant

notes that when the judge asked the jurors, “Does anybody have any experience yourself or with a

close family member with a charge of any kind of sexual misconduct of a small child or any child?”

three potential jurors raised their hands. The defendant further asserts that six more jurors indicated,

in response to the trial court’s question as to whether they could remain impartial in a case like this,

that they would have a hard time being impartial and would lean toward believing the child.

The purpose of voir dire is to ensure that jurors seated at trial are competent, unbiased, and

impartial. See State v. Mann, 959 S.W.2d 503, 533 (Tenn. 1997). The trial court is granted broad

discretion in deciding the manner in which voir dire will be conducted, and its decisions in this regard

will not be disturbed on appeal absent a showing of abuse of discretion. See State v. Stephenson, 878

S.W.2d 530, 540 (Tenn. 1994). We review the defendant’s issue, therefore, under an abuse of

discretion standard.

Rule 24(a) of the Tennessee Rules of Criminal Procedure states:

The court shall cause the prospective jurors to be sworn or affirmed to

answer truthfully the questions they will be asked during the selection
-16-

process, identify the parties and their counsel, and briefly outline the

nature of the case. The court may put to the respective jurors

appropriate questions regarding their qualifications to serve as jurors

in the case and shall permit questioning by the parties for the purpose

of discovering bases for challenge for cause and enabling an intelligent

exercise of peremptory challenges. The court, upon motion of a party

or on its own motion, may direct that any portion of the questioning of

a prospective juror be conducted out of the presence of the tentatively

selected jurors and other prospective jurors.

Tenn. R. Crim. P. 24(a) (emphasis added). Further, “[t]he prevailing practice in this state is to

examine the jurors collectively rather than individually.” State v. Oody, 823 S.W.2d 554, 563 (Tenn.

Crim. App. 199l). Individual voir dire, however, is mandatory when there is a significant chance that

a prospective juror has been exposed to potentially prejudicial material. Id.; see also State v.

Shepherd, 862 S.W.2d 557, 568 (Tenn. Crim. App. 1992) (noting that at least nine of the members

of the jury had seen an “Unsolved Mysteries” television program about the defendant, and ten of the

jurors were aware that the defendant was charged with more than one murder).

The defendant argues the trial court erred in disallowing individualized voir dire; however,

the record clearly reflects that those seven individuals were removed from the general jury pool and

questioned individually. Although the trial court did not initially question the jurors individually,

there were no facts to indicate such a process was necessary, the record not reflecting that this was

a highly publicized case or that any of the jurors were familiar with the case or the defendant.

Without something in addition to the nature of the crime to necessitate individual voir dire, we cannot

conclude that the trial court abused its discretion. In making this determination, we note that when

the court became aware that several of the jurors had personal knowledge or feelings about the nature

of the crime that prevented them from being impartial, they were excused from the courtroom,

questioned individually, and ultimately excused. 

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgments of the trial court

but remand for entry of corrected judgments to reflect that the defendant was convicted of Counts 3

and 4 of the indictment and that fines of $10,000 and $50,000, respectively, were assessed.

___________________________________ 

ALAN E. GLENN, JUDGE